Ground 1 (NN)
Grounds 2 and 3 (AP)
30 The sentencing judge indicated that in respect of the applicant NN, she had adopted a starting point of 14 years imprisonment and in respect of the applicant AP, a starting point of 13 years before extending to each of them a discount of 40% for their plea of guilty and assistance to the authorities. The thrust of the submission in each case was that such a starting point was beyond the legitimate range of available sentences for offences of this generic category. It was further submitted that even if it could be said that the offences were found to be within the range then given the sentencing judge's findings as to the limited extent of their respective roles when taken in combination with their favourable subjective features, the sentences imposed upon the applicants manifestly exceeded what was called for in their particular cases. In other words, because the starting point identified in each case by the sentencing judge was manifestly excessive, then it followed it was submitted, that so too were the ultimate sentences which were imposed.
31 In support of their respective arguments, the parties provided the court with comprehensive schedules of what were said to be comparable cases since the repeal of s 16G of the Crimes Act as and from 16 January 2003. It is unnecessary to descend to a detailed examination of those cases particularly since the Crown Prosecutor candidly acknowledged in an exchange with the presiding judge that he was unable to point to any decision, since the repeal of s 16G, in which a starting point of the order of those nominated in the present case had been identified. Nor was the Crown otherwise able to provide any satisfactory justification for the starting point to which I have referred. In my view when regard is had to the particular circumstances of the present applicants, that is a sufficient basis of itself upon which the intervention of this court is warranted.
32 An allied submission advanced on behalf of the applicants was to the effect that the starting point which was adopted was more appropriate for an offender who had performed a far more critical role than the present applicants, or for an offender who had been involved in an enterprise involving a commercial quantity of prohibited drugs, and in either case an offender who had also pleaded not guilty. See generally R v Speer [2004] NSWCCA 118; R v Otto (2005) 157 A Crim R 525; R v Mas Rivadia and Ors (2004) 61 NSWLR 63; R v Kardoulias and Ors (2005) 159 A Crim R 252; R v Riddell [2009] NSWCCA 96.
33 In that context it is necessary to refer to only one other authority decided since the repeal of s 16G. In Tyler and Chalmers v R (2007) 173 A Crim R 458, Chalmers was convicted after trial by reason of his involvement, at a managerial level, in a conspiracy to import a commercial quantity of cocaine which was in the order of 20 to 30 kilograms. A Crown appeal against the inadequacy of the sentence imposed upon that offender was allowed and he was resentenced to a term of 12 years imprisonment with a non-parole period of 8 years. Simpson J, with whom the other members of the court agreed, considered that the appropriate range of head sentence for that offence was one "of 12-16 years" [at 107]. Her Honour's assessment of the appropriate range in that case, in which much greater criminality was displayed, and there was no discount to be allowed for, serves to reinforce my view that the starting point adopted by the sentencing judge in the present case was indeed manifestly excessive.
34 There is one further submission which requires consideration given the prominence which it assumed both in the Crown's written submissions and in oral argument. The Crown placed considerable reliance upon this court's guideline judgment in R v Wong and Leung (1999) 48 NSWLR 340 in which a range of 7-10 years for "couriers and persons low in the hierarchy of the importing organisation" was specified for offences involving the high range of traffickable (now marketable) quantities of cocaine (1 kilograms - 2 kilograms). Not withstanding the criticism of the guideline itself by the High Court in Wong and Leung v The Queen (2001) 207 CLR 584, that range of sentence has subsequently been said by this court to be still of some assistance: R v Mas Rivadavia and Ors (supra) [at 65]; R v To (2007) 172 A Crim R 121 [at 21]; R v Tyler; R v Chalmers (supra) [at 136].
35 Since the guideline in Wong & Leung was promulgated, s 16G of the Crimes Act has been repealed. The impact of that repeal was referred to by this Court in R v Paliwala (2005) 153 A Crim R 451. James J, with whom the other members of the Court agreed said:
I accept that it should be inferred, as counsel submitted, from what her Honour said in her remarks on sentence that she considered that the range of sentences stated in R v Wong had become less appropriate since the repeal of s 16G and that the range of sentences for the same class of offence would be likely to he higher after the repeal of s 16G. In my opinion, her Honour was not in error in forming such a view.
While there has been some disagreement about some aspects of the effect of the repeal of 16G on sentences for Commonwealth offences, there has been general agreement in decisions of this court that the repeal of s 16G is likely to result in an increase in sentences, as compared with sentences imposed before the repeal of the section.
In Bezan Wood CJ at CL said (at [18]):
The effect of the decisions in R v Studenikin (2004) 60 NSWLR 1; 147 A Crim R 1 , R v Dujeu (2004) 146 A Crim R 121 and Mas Rivadavia is that while the repeal of s 16G is likely to result in an increase in the current and future sentencing pattern over that which is to be discerned by reference to the pre-repeal cases, which had been the subject of a s 16G discount, the proper approach is to set a sentence that meets the requirements of s 16A(1) of the Crimes Act 1914 , and the relevant objectives of sentencing, without giving a s 16G discount.
There is likely to be an increase in sentencing patterns as a result of the repeal of s 16G for the simple reason that, while s 16G was in force, a sentencing court in New South Wales was obliged to adjust downwards the sentence it would otherwise have imposed for a Commonwealth offence in order to take into account the absence of remissions in this State, whereas, since the repeal of s 16G, a sentencing court is no longer directed, or authorised, to make such a downwards adjustment to what it considers to be the appropriate sentence. (at pars 38-41)
36 The "s 16G discount" was usually in the order of one-third but it is clear that sentences imposed after the repeal of s 16G are not to be automatically increased by one-third: Clarkson v R (2007) 209 FLR 387 [at 265].
37 The applicants submitted that even adopting the approach contended for by the Crown, the top of the range of 7-10 years identified in Wong and Leung (supra) would have to be multiplied by a factor of 40% in order to reach the starting point of 14 years identified by the sentencing judge in the present case for the applicant NN. I accept the force of that submission and especially, as I have said, when appropriate consideration is given to the particular circumstances of each of the applicants.
38 It might be observed that the sentencing judge was not provided with the same assistance that this Court received. True it is that her Honour was given a number of schedules which contained references to what were said to be comparable cases. However, a number of the authorities referred to were cases decided prior to the repeal of s 16G. I entertain doubts as to the continuing utility of those authorities given the passage of time that has now elapsed since the repeal of s 16G. Similar reservations were expressed in R v Milich [2008] NSWCCA 148 [at 27]. It appears to me that a sufficient period of time has now passed for a new pattern of sentences to have become discernible, albeit one that is appropriately informed by some of the pre-existing authorities. In R v SC [2008] NSWCCA 29 Price J, with whom McClellan CJ at CL and Hall J agreed, concluded that the appropriate range of sentences for "low level trafficable quantities of heroin and cocaine" was between six and nine years imprisonment. In arriving at that range, his Honour appears to have relied upon what statistics maintained by the Judicial Commission revealed about cases decided since the repeal of s 16G.
39 Accordingly, I would uphold Ground 1 (NN) and Grounds 2 and 3 (AP) respectively which contend that the sentences were manifestly excessive.